Mike Sonko Mbuvi Gidion Kioko v Clerk, Nairobi City County Assembly & 11 others
The bottom line
#Kenya's Court of Appeal upheld Mike Sonko's impeachment as Nairobi Governor, confirming the County Assembly and Senate followed due process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the procedure adopted by the County Assembly in the impeachment of Hon Sonko was in accordance with the Constitution, the County Governments Act, and the Standing Orders of the Nairobi City County Assembly and of the Senate
- 2.whether there was quorum in the County Assembly to pass a resolution for the removal of Hon Sonko from office by way of impeachment
- 3.whether there was adequate public participation
- 4.whether there was in force a court order given on 25th November 2020 in ELRC Petition No 35 of 2020 barring debate on the Notice of Motion for removal from office of Hon Sonko by way of impeachment
- 5.whether the proceedings at the County Assembly and the Senate for the impeachment of Hon Sonko were procedurally fair, or whether his right to fair hearing was violated
- 6.whether the charges levelled against Hon Sonko were substantiated, and whether the same were proved to the required standard
- 7.whether the 8th respondent complied with the relevant statutory requirements in publishing Gazette Notice No 232/10914 of 2020 declaring its intention to hold a by-election for County Governor, Nairobi City County
- 8.whether the timelines set in article 182(4) and (5) of the Constitution for the conduct of a by-election for the office of County Governor may be shortened or extended by order of the court
- 9.who bears the costs of this appeal
Key legal issues
#Whether Hon Sonko was accorded a fair hearing at the County Assembly and Senate
He was accorded a fair hearing; he chose not to participate, failed to formally instruct an advocate, was informed of the charges, given opportunity to prepare a defence, and received the Assembly's report before the Senate.
Applying article 50 and Standing Order 72, and the natural justice principles in Ridge v Baldwin as applied in Mbalu Mutava, the court found the appellant was notified of the charges, could be legally represented, could adduce or challenge evidence, and received the Assembly resolution to prepare his Senate response. His 118-page written response showed familiarity with the charges. Late service of documents did not infringe his rights since he could cross-examine.
Whether the impeachment motion required verification by affidavit or oath
No; Order 67(1) required only signatures of at least one-third of members, and the motion was duly verified.
The word 'verify' bears its ordinary meaning of proving to be true or authenticating. Had affidavit verification been intended, express provision would have been made. None of the 86 signatories came forward to dispute the motion, and the trial court's finding that signatures sufficed was upheld.
Whether there was quorum for the impeachment resolution
Quorum was met; the Hansard showed 90 of 122 MCAs, more than two-thirds, voted on the motion.
Virtual proceedings were permitted under amended Order 231D due to COVID-19. Of the 39 affidavits annexed by the appellant claiming members did not vote virtually, 24 showed those members had in fact voted virtually. The appellant therefore failed to prove the two-thirds requirement was not met.
Whether there was sufficient public participation
Yes; notice in print media, online platforms, questionnaires and a survey report satisfied the constitutional and statutory requirements in the COVID-19 circumstances.
Article 196(1) and sections 87 and 91 of the County Governments Act give effect to public participation under article 10. No statutory threshold or means is prescribed; the state organ enjoys discretion. The Assembly published notice in daily newspapers, opened online platforms, circulated questionnaires and produced a report of 3rd December 2020; 40,000 memoranda were received, though by the appellant's own counsel who could have deployed them in his defence.
The standard of proof for impeachment of a sitting governor
Above a balance of probability but below beyond reasonable doubt - in between the two standards.
Following Martin Nyaga Wambora v Speaker of the Senate on the need for a high threshold and strict adherence to the law, the court held that because the threshold involves 'gross violation of the Constitution', the standard is intermediate between the civil and criminal standards.
Whether the charges against Hon Sonko were substantiated and proved
Yes; the charges of gross violation of the Constitution, abuse of office and gross misconduct were proved to the required standard.
On violation of the law, the appellant signed the NMS Deed of Transfer but refused to facilitate completion, hampering service delivery. On abuse of office, there was a high turnover of CECs and chief officers and one person held both CEC Finance and Chief Officer Finance posts. On gross misconduct, he used abusive language and social media posts he did not deny. Proof of even one charge sufficed.
Whether the Senators pre-determined the outcome or were biased
No; the Senate deliberated on the evidence, and the court cannot question senators' uniform voting in their quasi-judicial role.
The Senate Hansard showed no prior meeting or predetermined decision. Each senator was entitled to voice views in debate, and in voting made decisions on all issues including lawfulness of the proceedings. Since each senator exercised a quasi-judicial role as umpire, the court could not question consistent and uniform voting.
Legal principles established
#- On a first appeal, the Court of Appeal must analyse and re-assess the evidence and reach its own conclusions, and is not bound by the trial court's findings of fact.
- Verification of an impeachment motion under Order 67(1) of the Nairobi City County Assembly Standing Orders requires only signatures of at least one-third of members, not affidavits or statements on oath.
- The standard of proof for removal of a governor by impeachment is above a balance of probability but below the criminal standard of beyond reasonable doubt.
- Neither the Constitution nor statute prescribes a threshold or particular means for public participation; the choice of means is the prerogative of the state organ concerned, subject to the requirement that participation be meaningful.
- Natural justice, in particular the audi alteram partem rule, applies to bodies exercising administrative as well as judicial duties.
Court orders
#- 1.Hon Sonko's appeal be and is hereby dismissed
- 2.The judgment and decree of the High Court (J Chitembwe, W Korir and W Okwany, JJ) are hereby upheld
- 3.Parties bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No. E425 of 2020 (as consolidated with Constitutional Petition No. E014 of 2021)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules, 2010, rule 29(1)(a)
- Consolidated with
- Constitutional Petition No. E014 of 2021
Relief refused
#Setting aside of the High Court judgment and quashing of the County Assembly and Senate impeachment resolutions
The impeachment process complied with the Constitution, the County Governments Act and the Standing Orders; the charges were proved to the required standard
Costs of the appeal and of the High Court awarded to Hon Sonko
The appeal raised substantive issues of constitutional interpretation and matters of profound public interest
Costs
Each party to bear its own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Hon Sonko's appeal be and is hereby dismissed
the judgment and decree of the High Court (J Chitembwe, W Korir and W Okwany, JJ) are hereby upheld; and
we order and direct that parties bear their own costs
the standard of proof required for removal of a Governor is above a balance of probability, but below reasonable doubt, and therefore in between the two standards
Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition
The government agency or Public Official cannot merely be going through the motions or engaging in democratic theatre so as to tick the Constitutional box
an officer cannot be dismissed without first telling him what is alleged against him and hearing his defence or explanation
Issues in the judgment
#Discrepancy in number of MCAs supporting the motion: 86 signatures listed in the Held summary versus 88 stated in the body
Held summary attributes assumption of acting governor's office to the 2nd respondent (Speaker), while the body attributes it to the 10th respondent
Held summary says the Senate was gazetted for a special sitting on 16 December 2020; the body says 16th and 17th December were gazetted
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mike Sonko Mbuvi Gidion Kioko v Clerk, Nairobi City County Assembly & 11 others", Case Analysis (2022). Civil Appeal E425 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/405/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.